White v Minister for Immigration and Border Protection
[2015] FCA 1376
•4 December 2015
FEDERAL COURT OF AUSTRALIA
White v Minister for Immigration and Border Protection [2015] FCA 1376
Citation: White v Minister for Immigration and Border Protection [2015] FCA 1376 Appeal from: White v Minister for Immigration & Anor [2014] FCCA 2486 Parties: EDWARD CHRISTOPHER WHITE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: QUD 597 of 2014 Judge: COLLIER J Date of judgment: 4 December 2015 Catchwords: MIGRATION – r 1.15A(1A)(b)(i) and (iii)(B) Migration Regulations 1994 (Cth) – r 1.15A(1A)(b)(iii)(B) Migration Regulations 1994 (Cth) – whether appellant and spouse have “mutual commitment to a shared life as husband and wife” – whether appellant and spouse “do not live separately and apart on a permanent basis” – whether criterion in r 1.15(1A)(b)(i) required findings separate and independent from findings in r 1.15(1A)(b)(iii)(B) – r 1.15(1A)(b)(i), (ii) and (iii) need to be satisfied in order to satisfy criteria – appellant did not challenge Tribunal findings pursuant to r 1.15(1A)(b)(i) – Tribunal found appellant did not meet r 1.15(1A)(b)(i) – appeal fatally flawed Legislation: Migration Act 1958 (Cth) s 65
Migration Regulations 1994 (Cth) regs 1.15(1A)(b)(i), 1.15(1A)(b)(iii)(B), 1.15A(1), 1.15A(1A), 1.15A(1A)(b), 1.15A(1A)(b)(i), 1.15A(1A)(b)(iii), 1.15A(1A)(b)(iii)(B), 1.15A(3)Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Lu v Minister for Immigration (2004) 141 FCR 346
Main v Main (1949) 78 CLR 636
SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1
Tulk v Tulk (1906) 13 ALR 45Date of hearing: 1 April 2015 and 4 November 2015 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 36 Counsel for the Appellant: Mr AD Scott Solicitor for the Appellant: Bottoms English Lawyers Counsel for the First Respondent: Mr B McGlade Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent entered a submitting notice, save as to costs.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 597 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: EDWARD CHRISTOPHER WHITE
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
4 DECEMBER 2015
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 597 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: EDWARD CHRISTOPHER WHITE
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE:
4 DECEMBER 2015
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an appeal from a decision of the Federal Circuit Court of Australia, in which the primary Judge dismissed an application to review a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). The Tribunal had dismissed an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a Partner (Residence)(Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act). Materially, neither the delegate of the Minister and the Tribunal were satisfied that the appellant and his visa sponsor were in a genuine and continuing spouse relationship.
In this Court the appellant challenges the decision of the primary Judge and the Tribunal insofar as they interpreted the terms of reg 1.15A(1A)(b)(iii) of the Migration Regulations 1994 (Cth) (the Regulations) and the meaning of the phrase “do not live separately and apart on a permanent basis”. For the purposes of this judgment it is useful to set out reg 1.15A(1), (1A) and (3), which relevantly state:
(1)For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
(a) in a married relationship, as described in subregulation (1A); or
(b) in a de facto relationship, as described in subregulation (2).(1A) Persons are in a married relationship if:
(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b) the Minister is satisfied that:
(i)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A) live together; or
(B)do not live separately and apart on a permanent basis.
(2) …
(2A) …
(3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
(ad) a Partner (Migrant) (Class BC) visa; or
(ae) a Partner (Provisional) (Class UF) visa; or
(af) a Parter (Residence) (Class BS) visa; or
(ag) a Partner (Temporary) (Class UK) visa;
the Minister must have regard to all of the circumstances of the relationship, including , in particular:
(a) the financial aspects of the relationship, including:(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i)any joint responsibility for care and support of children, if any; and
(ii) the parties’ living arrangements; and
(iii) any sharing of responsibility for housework;
(c) the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities;
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii)the length of time during which the persons have lived together;
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
The Minister has filed a notice of contention, and claims that the decision of the primary Judge can be confirmed on grounds other than those on which his Honour decided the case.
Before turning to the notice of appeal and the notice of contention it is useful to examine the background facts.
Decision of the Tribunal
The appellant is a British citizen, validly married to his visa sponsor. They first met in December 2003 in Cairns (in which area the visa sponsor is based) and continued a relationship over a number of years. The appellant returned to Australia in September 2008 as the holder of a prospective marriage visa. On 16 June 2009 after the wedding was granted a Subclass 820 Partner visa.
The nature of the relationship between the appellant and the visa sponsor is detailed in the Tribunal’s decision. In summary:
·The appellant relocated to Victoria in May 2009 because he could not obtain work in the Cairns area, and remained in Melbourne until January 2011. He claimed that he visited the sponsor in Cairns six or seven times during this period.
·In April 2011 the appellant obtained work in Cairns, and rented an apartment in Cairns to live. The sponsor remained in Port Douglas where she was employed, and where her adult children and grandchildren resided.
·At the time of the Tribunal hearing the appellant and the sponsor resided at separate addresses – the sponsor in a rented apartment in Mossman north of Port Douglas, and the appellant with friends in Cairns. At no time since the Subclass 820 visa to the appellant had been granted had the sponsor and the appellant resided together on a permanent basis.
·In the Tribunal the sponsor and the appellant claimed that they did not live together because of their respective work commitments. The appellant gave evidence that he did not hold a driver’s licence and there was no work for him in Port Douglas, so he continued to live in Cairns. The Tribunal noted that the sponsor gave evidence to the same effect.
·Both the appellant and the sponsor gave evidence to the Tribunal to the effect that they were considering purchasing a business together in the future. At the time of the hearing however, the appellant and the sponsor were not pooling their money, and were using separate bank accounts.
·The Tribunal noted a number of phone bills, electricity statements and rental receipts in the parties’ joint names or showing the same residential address, but placed no weight on them given the appellant’s evidence that he and the sponsor were not living together and did not pool their money.
·Statutory declarations were provided to the Tribunal from third parties stating that the appellant and the sponsor presented themselves as a couple.
Relevantly, the Tribunal noted in respect of post-hearing submissions:
34.In the same submission, the registered migration agent submitted that the travel time between Port Douglas and Cairns is actually approximately 1 and a half hours. It was submitted that, having jobs geographically apart by such a distance would have a huge negative impact in terms of time sacrificed and fuel costs, were the parties to live together.
35.The registered migration agent further submitted that the Regulations do not spell out how the term “living apart permanently” should be defined and the applicant and sponsor’s living arrangements should be considered temporary. The agent submitted that, unless the Tribunal is certain beyond all reasonable doubt that the parties live apart permanently, in that they will never live in together, it is open to the Tribunal to find that the parties’ current living arrangement is temporary, no matter how long it has been going on.
Importantly the Tribunal concluded:
39.The Tribunal is prepared to accept that the applicant and sponsor have a long-standing relationship, which is recognised by others, and that they play a role in each other’s lives. However, based on the applicant’s oral evidence, the Tribunal is not satisfied that the relationship between the parties meets the definition of ‘spouse’ in r.1.15A. In particular, the Tribunal is not satisfied that the parties live together, or do not live separately and apart on a permanent basis in accordance with r.1.15A(1A)(b)(iii). The Tribunal is also not satisfied that the parties have a mutual commitment to a shared life as husband and wife in accordance with r.1.15A(1A)(b)(i).
In so concluding the Tribunal materially noted:
·It was not satisfied that the appellant and the sponsor were living together at the time of the decision or that they had plans to do so (at [40]). The Tribunal continued:
41.The Tribunal has taken into account the parties’ claims that the only reason they do not live together is because of the applicant’s inability to find work closer to the sponsor and his lack of driver’s licence. However, the sponsor lives in rented accommodation and the applicant is residing in the home of a friend. The Tribunal is prepared to accept that the distance between Mossman and Cairns is regarded as considerable by locals. However, the Tribunal is not satisfied that the parties could not find accommodation in a location mutually convenient to their respective jobs, were they committed to a shared life as husband and wife.
·The Tribunal was not satisfied that the frequency of face to face contact between the parties was indicative of a mutual commitment to a shared life as husband and wife in view of the relatively short travel time between their respective homes (at [42]).
·The Tribunal placed limited weight on evidence supporting the parties’ claim that they intended to purchase a business together (at [43]).
·In relation to reg 1.15A(1A)(b)(iii)(B) the Tribunal said:
44.The Tribunal has considered the applicant’s agent’s submission regarding the proper interpretation of r.1.15A(1A)(b)(iii)(B), but is not persuaded that it is the correct interpretation. The question is not whether the Tribunal is certain beyond reasonable doubt that the parties will never move in together, rather the Tribunal must be satisfied that the parties do not live separately and apart on a permanent basis.
45.The Tribunal places significant weight on the length of time for which the parties have lived separately and apart and the fact that they have not sought to live together or spend more time in each other’s company despite working only 40 to 90 minutes away from each other. The Tribunal is not satisfied that the parties do not live separately and apart on a permanent basis. The Tribunal is also not satisfied that the parties have a mutual commitment to a shared life as husband and wife.
Finally the Tribunal found as follows:
47.The Tribunal is not satisfied that at the time of this decision the applicant meets the requirements of r.1.15A(1A)(b)(i) and (iii). Accordingly the Tribunal is not satisfied that the applicant is the spouse of the sponsor and is not satisfied that he meets cl.801.221(2)(c).
Decision of the primary Judge
Before the primary Judge the appellant advanced two grounds for review, namely:
1.The Tribunal misconstrued the element within the definition of spouse directed to the applicant and spouse living “separately and apart” as required in the definition provided in s.5F(2)(d) of the Act; and
2.The Tribunal misconstrued the element within the definition of spouse addressing the relationship of the applicant and the sponsor having a “mutual commitment to a shared life as husband and wife to the exclusion of all others” by affording a disproportionate weight to the circumstances of residence and frequency of face-to-face contact.
In relation to ground 1, the appellant relied on Main v Main (1949) 78 CLR 636 and Tulk v Tulk (1906) 13 ALR 45 as authorities for the proposition that the phrase “live separate and apart” is a disjunctive phrase referring to two separate and distinct circumstances namely:
(a)the circumstances of a married couple living apart in which the couple reside at different places; and
(b)the circumstances of a married couple living separately in which the couple do not have a matrimonial relationship subsisting between them.
In particular, the appellant submitted that the Tribunal erred in failing to recognise that the evidence did not demonstrate they lived “separately” in the sense discussed in the authorities, or that the appellant and the sponsor intended to resume the close association of a common life once their employment situation changed. The appellant further submitted that the Tribunal erred in construing the phrase “live separately and apart” as a composite phrase describing a single circumstance, and in finding that if the couple did not reside together they would be living “separately and apart” even if there was a marital relationship subsisting between them.
At [15] of the judgment the primary Judge summarised eight points advanced by the appellant critical of the Tribunal’s approach to interpreting reg 1.15A(1A)(b)(iii)(B), namely:
a.The Tribunal’s reasons contained no consideration of the distinction between the words “apart” and “separate”;
b.The Tribunal’s findings did not treat the question of whether the parties lived “separately” and “apart” as discrete issues;
c.Instead the Tribunal considered the phrase as referring to a single issue namely whether the parties live “separately and apart on a permanent basis”;
d.That in considering that issue the Tribunal’s reasons focussed on the separate residence of the parties as the basis for its conclusion that they lived “separately and apart”;
e.At [13] of its decision the Tribunal noted that the applicant “confirmed...that at no time since [the grant of his temporary visa on 16 June 2009] ... had he and the sponsor resided together on a permanent basis”;
f.Further at [40] of its reasons, the Tribunal noted that the parties had not “resided together since at least June 2009” and proceeded to find:
While the parties have expressed a mutual desire to live together in the future, the Tribunal is not satisfied they are living together at the time of this decision and is not satisfied that they have plans to do so.
g.At [41] and [42], the Tribunal recharacterised the issue from one of considering whether the parties “lived separately and apart on a permanent basis” to a consideration of whether there was a “mutual commitment to a shared life”;
h.The issue is not again mentioned until [45] where the Tribunal noted the “length of time for which the parties have lived separately and apart” in circumstances where:
i.The only finding of the Tribunal as to any “length of time” relevant to whether they lived “separately” or “apart”, was its finding at paragraph 13 that the parties had not “resided together on a permanent basis” and at paragraph 40 that they had not “resided together since at least June 2009”;
ii.The Tribunal did not make any findings as to the “length of time” that the parties had lived “separately” as opposed to merely “apart”. It was submitted that by misconstruing the phrase “lived separately and apart” the Tribunal fell into jurisdictional error.
His Honour also noted at [16]:
Significantly, the applicant’s counsel observed in oral submissions that relief ought be granted if there is a possibility that the mutual commitment criteria may have been favourably decided for the applicant if the Tribunal had not adopted the incorrect construction in relation to the phrase “lived separately and apart”. It was submitted that the effect of the Tribunal’s misconstruction was that it dealt with living separately and apart as a single concept considering whether the applicant and sponsor lived in the same geographical place. That is contrary to what was submitted to be the correct construction, which was that geographic distance is directed to the concept of “apart” and the concept of “separately” refers essentially to a breakdown in the marital relationship.
The appellant further contended that the Tribunal conflated the two terms “separately” and “apart”, and in this manner misdirected itself.
In considering these submissions the primary Judge concluded, in summary, as follows:
·The determination by the Tribunal that the appellant and the sponsor had not been living together and did not pool financial resources was plainly in recognition of the first criterion in addressing the term “separately” (at [19]).
·The Tribunal addressed additional factors relevant to living together at paragraphs 39 and 40 of the Tribunal decision. While these passages could be construed to suggest the Tribunal conflated the terms, his Honour concluded from other passages in the Tribunal decision that it did not (at [20]).
·As the Tribunal noted at paragraph 13 of its decision, there was no factual contest that the parties lived physically apart. It followed that the only contest before the Tribunal concerned whether the applicant and the sponsor lived separately on a permanent basis, and this issue was considered by the Tribunal from paragraph 14 of the Tribunal’s decision (at [21]).
·It is plain from the authorities that some degree of overlap may exist between the terms “separately” and “apart”. Physical separation is not only necessary itself but is a constituent characteristic of “separately”, although not in all instances necessarily evidence of it (at [22]).
·When the parties are geographically proximate, the fact of being “apart” may inform the term of art “separate” (at [22]).
·The Tribunal’s language has caused confusion, however the primary Judge was satisfied that it had not misdirected itself in the analysis and conclusion of the term “spouse”. Even had the Tribunal correctly expressed itself, the outcome would have been the same (at [22]-[23]).
In relation to ground 2, his Honour considered that the contentions before the Court in respect of whether the appellant and the sponsor had a commitment to a “shared life together” were never put to the Tribunal. It followed that his Honour was not satisfied that the Tribunal failed to consider a claim expressly advanced (at [33]).
Accordingly the primary Judge dismissed the application.
Amended notice of appeal
At the hearing I granted the appellant leave to file an amended notice of appeal. In that amended notice of appeal the appellant raised two grounds of appeal from the decision of the primary Judge. They were as follows:
1.The Court erred in finding that the Second Respondent had not misdirected itself as to the proper construction of the meaning of “spouse” in s.1.15A [sic] of the Migration Regulations 1994 (Cth) (“the Regulations”), because that finding was contrary to the weight of the evidence.
Particulars of misconstruction
The Second Respondent erroneously construed the phrase “live separately and apart” in s. 1.15A [sic] of the Regulations as referring to mere physical separation.
Particulars of evidence
a.the Second Respondent failed to address in its reasons the Appellant’s submissions that “live separately and apart” in s. 115(1A) [sic] of the Regulations is not limited to mere physical separation;
b.the reasons of the Second Respondent suggested that the Second Respondent construed the phrase “live separately and apart” in s. 115(1A) [sic] of the Regulations as referring to mere physical separation.
c.during the hearing before the Second Respondent, the Second Respondent explicitly confirmed that it did construe the phrase “live separately and apart” in s.115(1A) [sic] of the Regulations as referring to mere physical separation, stating:
i.“… probably the main difficulty in your [the Appellant’s case] case is that the legislation says that I have to be satisfied, amongst other things, that you [the Appellant] and Ms Graham live together, or if you’re not living together that’s a temporary rather than um, permanent arrangement.”
ii.“Okay, Now I mentioned to Mr White that, one of the issues in this case is that the legislation says that I have to be satisfied that you and Mr White either live together, or if you don’t live together … That’s only a temporary arrangement.”
2.In making the finding that the Second Respondent had not misdirected itself as to the proper construction of the meaning of “spouse” in s. 1.15A [sic] of the Regulations, the Court failed to give adequate reasons. It did so because its reasons failed to deal with the Appellant’s submissions as to the inferences to be drawn from the Second Respondent’s statements during the hearing before the Second Respondent concerning the effect of s. 1.15A [sic] of the Regulations.
Amended notice of contention
At the hearing I also granted leave to the Minister to file an amended notice of contention, in the following terms:
The First Respondent contends that the judgment of the Federal Circuit Court of Australia should be affirmed on grounds other than those relied on by the Court but does not seek a discharge or variation of any part of the judgment which is subject of the within appeal.
The First Respondent does not seek to cross-appeal from any part of the judgment.
Grounds relied on
1.Even if the Tribunal fell into error in the manner contended for in ground 1 of the amended notice of appeal (which is denied), such an error would not be a material error sufficient to infect the Tribunal’s decision with jurisdictional error.
Particulars
(a)The Tribunal also found that the appellant and sponsor were not in a “married relationship” under reg 1.15(1A) of the Migration Regulations 1994 (Cth) (“Regulations”) because it was not satisfied that they had a mutual commitment to a shared life as husband and wife to the exclusion of all others.
(b)As such, even if the Tribunal erred in the manner contended for (which is denied), it would still have had to refuse the grant of the partner visa because the requirement stipulated in reg 1.15(1A)(b)(i) was not met.
(c) In the premises, the error contended for was not material.
(d)Additionally, in the circumstances of the case the finding that the appellant and the sponsor did not meet reg 1.15(1A)(b)(i) necessarily, logically and rationally had to result in the finding that the appellant and his sponsoring spouse did not meet reg 1.15(1A)(ii) [sic]. In the premises, the error the appellant contends for in this proceeding was not material.
Submissions of the parties
Both parties in the appeal accepted that the expression “live separately and apart” in reg 1.15A(1A)(b)(iii)(B) is a term of art deriving its meaning from matrimonial law. In this appeal, the appellant no longer challenges the decision of the Tribunal insofar as it was not satisfied that the appellant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others within the meaning of reg 1.15A(1A)(b)(i).
Consideration
This appeal raises three issues, namely:
(1)Whether the fact that the appellant does not challenge the findings of the Tribunal in respect of reg 1.15A(1A)(b)(i) means that this appeal can be resolved on that point, as claimed by the first respondent in its notice of contention.
(2)The relevance of observations made by the Tribunal during the hearing before it in relation to the concept “live separately and apart”, in particular whether those observations coloured its eventual findings.
(3)Whether the Tribunal and the primary Judge erred in their interpretation of the phrase “live separately and apart”, such that the Tribunal made an error going to its jurisdiction, and the current appeal ought be allowed.
In relation to the first issue, the Minister submits that it is fatal to the appeal. It is appropriate to deal with this issue before turning to issues 2 and 3.
At the hearing Counsel for the appellant confirmed that the appellant was not, in this appeal, seeking to disturb the findings of the Tribunal in respect of reg 1.15A(1A)(b)(i), namely that the Tribunal was not satisfied that the appellant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Minister contends, in summary, that even if the Tribunal erred in respect of reg 1.15(1A)(b)(iii)(B) and its interpretation and application of the phrase “live separately and apart”, the Tribunal would still have refused the grant of the partner visa because the requirement stipulated in reg 1.15A(1A)(b)(i) was not met.
In addressing this issue the appellant submits in summary:
·In Lu v Minister for Immigration (2004) 141 FCR 346 at 360 Sackville J explained:
It seems to me that the correct approach is that stated in Stead and adopted by the High Court in Aala. The test is whether the applicant has been deprived of the possibility of a successful outcome by the decision-maker’s failure to observe the requirements of the statute. If so, the jurisdictional error could have had a bearing on the outcome and the applicant is not to be denied relief on the basis that the error was insignificant. The test must be applied by reference to the material actually before the decision-maker and, where the decision-maker’s reasoning processes is [sic] known, taking into account his or her approach to the exercise of the particular statutory power. The question is not whether the decision-maker would probably have reached the same result even if the omitted consideration had been taken into account.
·The question is therefore whether the alleged error of the Tribunal in respect of reg 1.15(1A)(b)(iii)(B) deprived the appellant of the “possibility” of a successful outcome. It is not whether the Tribunal “would probably have reached the same result” even if it did not make the alleged error.
·Despite the Tribunal’s finding on the “mutual commitment to a shared life as husband wife” criterion, it is still possible that the Tribunal might have decided the matter differently had it decided the matter according to law.
·The Tribunal did not in its reasons explain how it construed the phrase “mutual commitment to a shared life as husband and wife”. There is no express statement in those reasons as to what it considered to be “a shared life as husband and wife”. There is some suggestion, however, in the transcript of the Tribunal proceeding that the learned member thought that the legislation only recognised a narrow category or relationship.
·It is possible that the Tribunal’s understanding of the “live separately and apart” criterion affected her understanding of the meaning of reg 1.15A(1A)(b)(i). That this is so is apparent from the focus of the Tribunal on the extent of physical separation between the appellant and the sponsor when dealing with the phrase “mutual commitment to a shared life as husband and wife”.
·As is made plain in such cases as Main and SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1 a matrimonial relationship may subsist notwithstanding the parties’ physical separation, for example in the case of married shift workers who may see little of each other when their shifts at work do not coincide. The Tribunal did not consider whether changes to the shifts of the appellant and the sponsor could improve the amount of face-to-face contact between them, and it is possible that this was because the Tribunal had adopted a narrow view of the type of relationship recognised by the legislation based on its understanding of the “live separately and apart” criterion.
·The Tribunal might have decided the matter differently had it not erred on the “live separately and apart” criterion.
·The Minister is wrong when he contends that the “live separately and apart” criterion and the “mutual commitment to a shared life as husband and wife” criterion are not materially different. If the Tribunal used its conclusions on “mutual commitment to a shared life as husband and wife” to inform its conclusions on “live separately and apart” it was in error, because it was required to construe each criterion separately. In writing the appellant submits:
By the same principle, it would be wrong to assume that a conclusion on the “live separately and apart” criterion equates with a conclusion on the “mutual commitment to a shared life as husband and wife” criterion. Otherwise the “mutual commitment to a shared life as husband and wife” criterion would be a dead letter and the legislative requirement that both criterions [sic] be considered would be otiose.
The Minister refutes these contentions in the following terms:
·It is clear from such decisions as Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 that the mere existence of error is not sufficient to give rise to an error sufficient to found an appeal. The error must also be material to the ultimate decision.
·Even if the Tribunal erred with respect to its reasons in relation to “live separately and apart”, this error was not material to the ultimate decision because the appellant also failed to satisfy reg 1.15(1A)(b)(i).
·The Minister accepts that the appellant’s contention that the test for materiality is whether a party has been deprived of the possibility of a successful outcome, and that the Tribunal’s alleged misconstruction of the term “live separately and apart” had the potential to affect its finding concerning “mutual commitment”.
·The Minister does not accept however that a legal error relating to the correct meaning of “live separately and apart” could, even potentially, affect the outcome of another different, and legally independent, visa criterion.
In my view, the submissions of the Minister are correct, and the appeal is fatally flawed. Indeed – practically – had the Tribunal simply made the decision it did in respect of reg 1.15A(1A)(b)(i) without making a determination in respect of paragraphs (ii) and (iii) the appellant would have been denied his visa, as the prerequisite for the issue of the visa to the appellant was that the Tribunal be satisfied of the elements in all three paragraphs (i), (ii) and (iii) of reg 1.15A(1A)(b). Notwithstanding any error allegedly made by the Tribunal in respect of reg 1.15(1A)(b)(iii)(B), such error would not be material, and would warrant an order setting aside the decision of the Tribunal for jurisdictional reasons.
First, and despite repeated queries from the Bench at the hearing, the appellant maintained its position that he was not seeking to challenge the findings of the Tribunal (or the primary Judge) in respect of reg 1.15(1A)(b)(i). It is difficult to reach any logical conclusion other than that, because of the requirement that the criteria in all three paragraphs of reg 1.15(1A)(b) be satisfied, the appellant cannot be successful in his appeal to set aside the decision of the primary Judge and the Tribunal. As I have already observed, it is an irrefutable point that even if the appellant is successful in his arguments concerning reg 1.15(1A)(b)(iii)(B), the Minister can simply point to the fact that neither he nor the Tribunal considered that the criterion in reg 1.15(1A)(b)(i) had been satisfied and that this conclusion is not challenged by the appellant. In this respect, there is no merit in the appeal because the appellant simply cannot be successful on all three criteria in reg 1.15(1A)(b)(i).
Second, the appellant claims that he has been deprived of the possibility of a successful outcome in relation to reg 1.15(1A)(b)(i) because the Tribunal failed to properly interpret reg 1.15(1A)(b)(i). In this respect he relies on the decision of the Full Court in Lu.
In Lu the question before the Court was whether, in deciding to cancel the visa of the applicant in that case, the Minister had failed to take into account a relevant consideration, namely an accurate statement of the applicant’s criminal record. On the facts it was clear that material before the Minister correctly identified that in 1991 the applicant had been convicted of armed robbery, burglary and home invasion and sentenced to a term of imprisonment of six years and six months. The material also identified that the applicant had been convicted of drug offences in 1993 and sentenced to further prison in 1997, however the material did not identify the drug which was the subject of those convictions (namely marijuana), and incorrectly stated that he had been sentenced to nine months imprisonment (when in reality he had received fines and a sentence of one month imprisonment). The Full Court found that in deciding whether the Minister’s decision had been infected by jurisdictional error, the Court should consider:
(i)whether the decision-maker’s omission to take into account a relevant consideration could be characterised as a failure to take relevant considerations into account and therefore constitute jurisdictional error; and
(ii)if so, whether relief should nonetheless be denied on the ground that the failure could not have materially affected the decision.
The Full Court in Lu found that the Minister’s decision was infected by jurisdictional error in failing to have regard to an accurate statement of the applicant’s criminal record. The majority of the Full Court further found that the applicant had been deprived of the possibility of a successful outcome in respect of his visa cancellation because of that error. Black CJ and Sackville J so concluded on the basis that had the Minister been presented with the correct details of the drug use convictions and sentencing of the applicant, the Minister may have taken a different view of the risk of recidivism, and accordingly the Minister may have made a different decision in respect of the cancellation of the applicant’s visa.
The circumstances in Lu were very different from those before me. In that case, the material the Minister failed to take into account went directly to the question before the Minister under the Act, and the Full Court found that the outcome of that failure could possibly have affected the decision made, such that the applicant in that case had been deprived of the possibility of a successful outcome. In the case before me, it is certainly plausible that the Tribunal’s view of whether, on particular facts, a couple “live separately and apart” for the purposes of reg 1.15(1A)(b)(iii)(B), could be similar to its view whether the same couple had a “mutual commitment to a shared life as husband and wife” for the purposes of reg 1.15(1A)(b)(i). This is because common factors, and, perhaps common evidence, exist which may be relevant to forming conclusions in respect of each criterion. However, as both parties in this appeal appeared to accept, reg 1.15(1A)(b)(i) requires findings of the Tribunal separate and independent from its findings under reg 1.15(1A)(b)(iii)(B). Any legal error made by the Tribunal in making a determination under reg 1.15(1A)(b)(iii)(B) does not mean that it would make a legal error in its determination of reg 1.15(1A)(b)(i), or vice versa. It follows that the appellant could not be deprived of the possibility of a successful outcome in respect of, for example, reg 1.15(1A)(b)(i) because of errors in the Tribunal’s consideration of reg 1.15(1A)(b)(iii)(B).
Third, and in any event, it is clear from the decision of the Tribunal that it actually considered the separate requirements of reg 1.15(1A)(b)(i) and reg 1.15(1A)(b)(iii)(B). I am not satisfied on the facts that any error of the Tribunal in its consideration of reg 1.15(1A)(b)(iii)(B) could have possibly deprived the appellant of a successful outcome in respect of the requirements of reg 1.15(1A)(b)(i), or vice versa.
In summary, even if the Tribunal fell into error in its interpretation and application of reg 1.15(1A)(b)(iii)(B) as contended by the appellant, the error would not be a material error sufficient to infect the Tribunal’s decision with jurisdictional error. I consider that the decision of the primary Judge should be affirmed on this basis.
It follows that it is unnecessary for me to consider issues 2 and 3 as raised above. The appropriate order is to dismiss the appeal with costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 3 December 2015
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